Advocate Commissioner's report not final; can be impeached with evidence at trial; no interference absent jurisdictional error.

JUDGMENT

This original petition is filed impugning Ext. P5 Order passed by the Munsiff Magistrate Court, Perinthalmanna, in an application to remit the report of the Advocate Commissioner.

1.1. The petitioner is the 5^th defendant in a suit for permanent prohibitory injunction. At the instance of plaintiff, one Adv. V. Usman was appointed to inspect the property with the assistance of the Surveyor. On 10.07.2017, he submitted the report and plan. The defendants, immediately on filing the said report, filed an application stating that the Advocate Commissioner has not identified the defendants’ property based on their documents though the defendants had made available the documents to the Advocate Commissioner.

1.2. The Advocate Commissioner, on the other hand, specifically reported in his report that though the defendants were present at the time of inspection, they did not handover any documents in order to enable the Advocate Commissioner to measure out the property. Based on these material averments, the Trial Court concluded that the situation does not warrant to remit the report of the Advocate Commissioner. All matters which were raised in the application would be looked into at the time of trial, provided, sufficient materials are available. Accordingly, the order was passed.

2. Heard Sri. S. Sujin, the learned Counsel appearing for the petitioner and Smt. M. R. Mini, the learned Counsel appearing for the 3^rd respondent.

3. Sri. S. Sujin, the learned Counsel appearing for the petitioner pointed out that the finding in Ext. P2 report that the defendants did not make available the copy of the title deeds for identification of their property is incorrect. In fact, under Ext. P4, a specific objection was raised by the defendants that the aforesaid finding in the report is incorrect. In fact, since there was a serious dispute regarding identity of plaint schedule property, it was incumbent upon the plaintiff to have identified the property correctly.

4. Per contra, Smt. M. R. Mini, the learned Counsel appearing for the 3^rd respondent/plaintiff countered the submissions of the learned Counsel for the petitioner and contended that if as a matter of fact, the defendants had made available the necessary title deed, the Advocate Commissioner could have identified the property. There is no reason to disbelieve the statement recorded by the Advocate Commissioner in his report. At any rate, it is pointed out that the report of the Advocate Commissioner could be impeached by such evidence as the petitioner may desire to produce during the course of the trial.

5. On considering the submissions raised across the Bar, this Court is of the view that there is no jurisdictional infirmity or irregularity in Exhibit P5 order. Admittedly, the suit is of the year 2010 and it has not attained finality because of the pendency of these original petitions. 6. Though the learned Counsel for the petitioner vehemently pointed out that the statement recorded by the Advocate Commissioner in his report that the defendants have not made available the copy of their title deed for measurement of their property is incorrect, this Court sees no reason to disbelieve the statement recorded by the Advocate Commissioner. At any rate, it cannot be assumed that the report of the Advocate Commissioner is final unless and until the same is found to be acceptable by the Court. Therefore, interest of justice would suffice if the petitioner is given liberty to produce such evidence to impeach the findings rendered by the Advocate Commissioner. That be so, this Court sees no reason to interfere with Ext. P5 order. Resultantly, the original petition fails and the same is hereby dismissed. Since the suit is of the year 2010, the Munsiff Magistrate Court, Perinthalmanna, shall endeavor to expedite the trial of the suit.